Representing an investor in a billion-dollar ICSID claim against Honduras
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|Pending cases as counsel||8|
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|Current arbitrator appointments||24 (9 as chair or sole)|
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Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 370 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a member of the International Council for Commercial Arbitration’s governing board and a former vice president of the LCIA. He is a founding member of the Spanish Arbitration Club and was, for many years, president of the Spanish Court of Arbitration.
In terms of his jurisprudential contribution, his name is on many significant awards at ICSID, including cases concerning the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.
In 2013, the King of Spain presented Cremades with the Grand Cross of the Order of St Raymond of Peñafort, in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration” and in 2017 was elected to Spain’s Royal Academy of Jurisprudence and Legislation.
The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: a GAR special report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.
While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right and also sits as an ICSID arbitrator. Educated in New Zealand, Cairns has worked in Madrid since 1999. He has featured in GAR’s “45 under 45” – a list of the leading younger practitioners in the field.
The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis Mallet-Prevost, Colt & Mosle in New York. While at Curtis he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims.
The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.
Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.
The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm wasn’t involved in the original arbitration but was instructed in a second arbitral proceeding where damages were reduced by 60% and a counterclaim for more than €243 million was upheld. The firm applied to the Spanish Supreme Court, which held that two of the arbitrators were professionally liable and ordered them to reimburse part of their fees.
Cremades Jr was part of a co-counsel team that won a US$40 million award in 2015 for an investment company owned by Bolivian opposition politician Samuel Doria Medina against a Mexican cement group.
In 2014, the firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company.
Pending counsel work includes representing a prominent Honduran family in a billion-dollar ICSID claim against their home country over the expropriation of their assets.
The firm also acted for the widow of Carlos Gutiérrez-Maturana-Larios y Príes – a member of Málaga’s prominent Larios family – and her two daughters in a US$600 million inheritance dispute. A Madrid-seated tribunal issued a favourable award in 2017, which the Spanish superior court set aside for public policy reasons. In September 2019 the Constitutional Court of Spain admitted the appeal from the widow and her daughters against the set-aside, and is considering the permissible level of judicial scrutiny of arbitral awards.
The firm successfully petitioned a US court to confirm the US$40 million award in favour of an investment corporation owned by Bolivian opposition politician Samuel Doria Medina. The respondents have appealed the confirmation.
Cremades Sr continues to take on high-profile arbitrator work. He is part of an UNCITRAL tribunal hearing a US$12 billion investment treaty claim against Russia brought by former banker Sergei Pugachev. He is also presiding over a US$60 million ICSID claim against Bulgaria brought by two Israeli investors; and he issued an emergency award in July last year refusing to renew emergency relief restraining Georgia from selling attached assets belonging to a Georgian-UK dual national’s tobacco business.
Cairns is part of a panel hearing a US$200 million NAFTA case brought by a Canadian investor against Mexico.
Who We Are
B. Cremades & Asociados was founded in 1969 by Professor Bernardo M. Cremades. Since then, it has consolidated its reputation as a leading firm in international law with particular expertise in international commercial and investment arbitration.
We have a team of approximately 20 lawyers with a high degree of specialization in our strategic areas. Our principal practice areas are national and international dispute resolution, and we also advise on corporate, financial, administrative and tax law.
Unparalleled Experience in International Arbitration
B. Cremades & Asociados is the pioneer of arbitration in Spain (both commercial and investment protection arbitration). Bernardo M. Cremades, the managing partner of the firm, has participated as counsel or arbitrator in more than 370 arbitration proceedings. He is one of the most experienced arbitration practitioners in the world and the undisputed leader in the Spanish-speaking market.
Bernardo M. Cremades has been responsible for some of the most significant doctrinal developments in the history of arbitration, including the recognition of the lex mercatoria, the formation of the arbitration agreement under investment protection treaties, and the definition of the term “investment” in international law.
The prestigious publication Chambers & Partners describes Bernardo M. Cremades as a “legendary arbitrator” and his team as a “leading international practice, representing high-profile clients from across the world.” Global Arbitration Review classes our firm as “Spain’s unofficial university of arbitration” and adds that nearly half of the professionals listed in its guide for Spain are members of our office or have worked here at some point in their careers. Who’s Who Legal refers to Bernardo M. Cremades as the “number one practitioner in Spain for commercial arbitration” and “one of the top names in the industry.” The Arab Association for International Arbitration (AAIA) has recognized Bernardo M. Cremades as an “Ideal Arbitrator in Euro-Arab Arbitration.”
In the arbitration team of B. Cremades & Asociados all our lawyers enjoy international profiles, allowing us to provide advice on both common law and civil law matters. Several of our attorneys are admitted in jurisdictions other than Spain, including England and Wales, France, New York, California, Peru and New Zealand.
Our attorneys are thoroughly familiar with the most commonly used arbitration rules, including the International Centre for Settlement of Investment Disputes (ICSID); the International Chamber of Commerce (ICC); the United Nations Commission on International Trade Law (UNCITRAL); the Arbitration Institute of the Stockholm Chamber of Commerce (SCC); the American Arbitration Association (AAA) and its International Centre for Dispute Resolution (ICDR); the Permanent Court of Arbitration of the United Nations (PCA); the London Court of International Arbitration (LCIA); the China International Economic and Trade Arbitration Commission (CIETAC); the Association of Swiss Chambers of Commerce; the German Institution of Arbitration (DIS); the Inter-American Commercial Arbitration Commission (IACAC); the World Intellectual Property Organization (WIPO); The Cairo Regional Centre for International Commercial Arbitration (CRCICA); the Lima Chamber of Commerce (CCL); the Civil and Commercial Court of Arbitration (CIMA); and the Court of Arbitration of Madrid.
We are accustomed to handling international disputes involving more than one jurisdiction or arbitral seat. We regularly monitor and advise on local arbitration procedures outside Spain when a high degree of sophistication is required in public or private international law.
Our arbitration team advises clients before, during and after the arbitration proceeding. These services include:
- advice and representation in arbitration proceedings under different rules, both nationally and internationally;
- assistance with the drafting of arbitration clauses and the design of ADR mechanisms;
- negotiations with other parties before, during and after the proceeding;
- applications for provisional measures and injunctive relief related to arbitral proceedings;
- advice and representation during the search for funding, as well as during the negotiations with the funder;
- strategic consulting services with other firms on arbitration matters;
- supervision and litigation consulting services related to arbitration proceedings (in tribunals of any jurisdiction of the world);
- the recognition, enforcement and annulment of arbitral awards.
The partners in our firm enjoy wide international recognition. Several of our lawyers appear in the panels of the most prestigious arbitration institutions throughout the world and frequently are invited to lecture or speak in international events devoted to arbitration or public international law. Bernardo M. Cremades is a member of the ICSID panel of arbitrators (appointed by the Government of Spain).
Our lawyers have participated in many significant investment arbitrations as counsel, party-appointed arbitrator or presiding arbitrator, including some doctrinally decisive arbitrations, and have unparalleled expertise in this field. Current instructions as counsel include the representation of investors in ICSID proceedings against Venezuela and Honduras.
Our attorneys are thoroughly acquainted with the particularities of investment arbitration, as well as the applicable procedural rules and the extensive case law. We have participated in investor-State proceedings initiated as a result of expropriation (direct or indirect) and other violations of the substantive protections contained in international instruments, such as bilateral and multilateral investment protection treaties and other agreements to promote investments, as well as international administrative contracts. Our experience includes arbitrations pursuant to the Energy Charter Treaty (ECT) and the North American Free Trade Agreement (NAFTA).
Some of the investor-State arbitrations in which we have participated resulted in arbitral awards which are regularly cited in arbitral texts and jurisprudence, including Compañía de Aguas del Aconquija, S.A. and Vivendi Universal v. The Republic of Argentina and Elsamex, S.A. v. The Republic of Honduras. The publication Global Arbitration Review says the name of Bernardo M. Cremades appears “on many of the most significant awards at ICSID.” For example, the arbitral award issued in Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Kingdom of Morocco has become a key decision in international law in relation to the definition of an “investment” under a bilateral investment treaty. In Lanco International, Inc. v. Argentina, the decision on jurisdiction was the first time that an arbitral tribunal was found to have jurisdiction to arbitrate a dispute between a foreign investor and the Republic of Argentina. The dissenting opinion of Bernardo M. Cremades in Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines is an international reference on the analysis of the legality of a given foreign investment.
Our arbitration team works closely with our tax department in order to design and implement corporate structures which on one hand maximize tax efficiency and on the other hand minimize political risk. This is particularly important when there is a risk that an investment will be detrimentally affected by state measures and thus requires protection under an international treaty.
In the field of commercial arbitration, B. Cremades & Asociados enjoys national and international prestige. We have strong expertise in arbitrations relating to various sectors, including energy, oil, gas, natural resources, construction, engineering, pharmaceuticals, transportation, telecommunications, intellectual property, national and international procurement, corporate arbitrations, joint ventures, international sale of goods and distribution contracts.
We also have considerable experience in arbitrations relating to capital markets and the banking sector, including proceedings arising from the issue of preferred securities by Spanish savings banks. We also have significant experience in disputes involving FIDIC construction contracts.
Amongst cases in which the firm has recently participated as counsel are the following:
- ICC arbitration and related litigation arising from the construction of a hydroelectric plant in Panamá;
- two dispute board hearings and a subsequent ICC arbitration relating to the construction and operation & maintenance of a heavy fuel oil plant in El Salvador;
- arbitration between one of Spain’s leading banks and a Turkish telecommunications company;
- two arbitrations between two of the world’s largest energy companies;
- arbitration between prominent French and Spanish telecommunications companies;
- arbitration involving a Colombian railway company against a U.S. company;
- arbitration involving a Spanish engineering company against a Middle East State-owned oil company;
- multiple heavy plant construction disputes involving construction contracts in Europe and the Middle East;
- intellectual property dispute involving a Spanish and a U.S. company;
- arbitration between a French food group and its shareholders;
- arbitration concerning a distribution contract and intellectual property rights involving a German and Spanish company;
- arbitration between the Spanish branch of a German pension fund and the developer of a seven-star hotel, and
- arbitration between a Bolivian holding and a Mexican cement producer.
Some of the international commercial arbitration cases in which members of our firm have participated also resulted in decisions of undisputable importance for the development of international arbitration. For example, Pabalk Ticaret Ltd. v. Norsolor, S.A., in which Bernardo M. Cremades was president of the tribunal, was the first occasion an arbitral tribunal applied lex mercatoria to render a decision. Angel M. Tejada obtained the first annulment of an arbitral award due to the violation of the principle of collegiality in the deliberations of an arbitral tribunal.
B. Cremades & Asociados has an excellent network of contacts with arbitration specialists from all over the world and, in particular, in the main arbitration venues. B. Cremades & Asociados is a member of TAGLaw, an association of quality law firms with a presence in over 80 countries.
Alternative Dispute Resolution – ADR
Our firm also has experience in the structuring and presentation of disputes before dispute adjudication boards. Members of our firm have recently served in dispute adjudication boards in major infrastructure construction projects in Qatar, Ecuador and Egypt.
Similarly, our team provides advice on national and international mediation. David J. A. Cairns is an accredited mediator in the United Kingdom and a registered Spanish mediator.
The firm enjoys excellent relations with the main third party funders of arbitration and regularly advises its clients on the fundraising process. The firm also advises litigation funders when facing an investment in a claim, issuing legal opinions when necessary. Members of the firm have published widely on third party funding topics.